A same-sex marriage supporter waves a rainbow flag in front of the US Supreme Court on Tuesday in Washington, DC, as the Court takes up the issue of gay marriage.

Three weeks after U.S. District Judge Bernard Friedman decided he'd wait to see what the nation's highest court had to say before ruling on the constitutionality of Michigan's 8-year-old gay marriage ban, U.S. Supreme Court justices seem to be looking for a way to dodge the issue altogether.

In the first of two cases being argued this week, the high court was asked Tuesday to deep-six a California law that restricts marriage to partners of opposite sex. A Supreme Court declaration that gay couples enjoy a fundamental right to marry could do for bans enacted by Michigan and 36 other states what Roe v. Wade did for state laws that once prohibited abortion.

But suspicions that the high court wants to avoid any such sweeping pronouncement were reinforced Tuesday when several justices confessed they're having cold feet about weighing in at all.

"You want us to step in and assess the effects of this institution, which is newer than cell phones and/or the Internet?" Justice Samuel A. Alito Jr. asked lawyers seeking to overturn California's ban at one point during Tuesday's arguments.

Alito's colleague, Anthony Kennedy, who many expect to cast the deciding vote in both gay marriage cases pending before the court, was even more tentative.

"I just wonder if this case was properly granted," Kennedy mused, raising the prospect that he would join with colleagues on both sides of the issue to postpone a definitive ruling on the constitutional status of same-sex marriage.

That would be a cowardly retreat by a court whose fellow citizens have increasingly recognized that laws forbidding gay couples to marry serve no rational governmental purpose. Gay marriage opponents who cite a public interest in promoting "responsible procreation" have consistently failed to demonstrate that laws restricting same-sex unions have any impact on the number or stability of opposite-sex marriages.

Yet even a high-court decision to sidestep the issue may leave Michigan's gay marriage ban in mortal jeopardy.

In a suit filed in January 2012, April DeBoer and Jayne Rowse, two nurses who are raising three special-needs children in the Hazel Park home they've shared for six years, asked Judge Friedman to throw out a Michigan statute that prohibits gay couples from adopting children together.

Last October -- at Friedman's suggestion, and over the objections of Michigan Attorney General Bill Schuette -- the plaintiffs expanded their lawsuit to argue that Michigan's 8-year-old ban on same-sex marriage violates their rights under the federal constitution.

A Supreme Court ruling upholding California's gay marriage ban would likely deter Friedman from striking down the state constitutional amendment Michigan voters approved in 2004. But anything less definitive -- including a determination that proponents of California's ban lacked standing after the state's attorney general declined to defend it -- would leave an opening for Friedman to declare Michigan's same-sex marriage ban unconstitutional.

It's easy to understand justices' reluctance to wade into a controversy that continues to divide Americans in many corners of the country. But the federal judiciary's role is defending individual civil liberties even -- and maybe especially -- when voters and their elected officials lack the will to do so.

This is surely an instance where the fundamental rights of hundreds of thousands of gay Americans trump the irrational fears of heterosexual voters.

The nation's highest court should not shrink from its responsibilities to the nation's gay minority, and if it chooses to do so, Judge Friedman should not hesitate to step into the breach.

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Editorial: If justices shirk their duty, Judge Friedman should do his

Three weeks after U.S. District Judge Bernard Friedman decided he'd wait to see what the nation's highest court had to say before ruling on the constitutionality of Michigan's 8-year-old gay marriage